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ELCDismissedEnvironment and Land Appeal 20 of 2020· [2023] KEELC 19208 (KLR)

Mika (Suing as the administrator of the Estate of Michael Ondieki Wamuoso (Deceased) v Ogutu

Environment and Land Court
27 July 2023
EAE. Asati
2,641 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kisumu dismissed a neighbour's land appeal, confirming that trial courts' findings on boundary disputes will rarely be overturned.

What this practically means

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Executive summary

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The appellant, administrator of the estate of Michael Ondieki Wamuoso (deceased), appealed against the judgment of the Tamu Senior Resident Magistrate's Court (delivered 28 April 2020) which dismissed his suit seeking a declaration that the estate was entitled to possession of land parcel Kisumu/Koru/292 and that the respondent had trespassed onto it. The trial court had found the appellant failed to prove his case on a balance of probabilities. The appeal raised three issues: whether the magistrate failed to consider the appellant's defence, the surveyor's report, and the appellant's possession of the suit land. On the first issue, the court held the appellant, being the plaintiff below, had no defence for the trial court to consider. On the second, the court found the trial court had critically interrogated the two conflicting surveyors' reports - PW2's report finding encroachment by parcel 804 onto 292, and DW2's court-ordered report finding the appellant had encroached on the respondent's land by about 5m x 150m - and had given reasons for preferring DW2's report as more credible, based on the age of the boundary features and the surveyors' independence. On the third issue, the court found no pleading or evidence that the appellant was in possession; the claim was of the respondent's encroachment. Applying the principle in Mkube v Nyamuro that an appellate court will not interfere with findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles, the court found the grounds of appeal unproved and dismissed the appeal. As the parties are neighbours, each party was ordered to bear its own costs of the appeal.

Key legal issues

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01

Whether the trial court ignored the defence of the appellant

Holding

The issue fails; as plaintiff in the lower court the appellant had no defence for the trial court to consider, and the trial court considered the pleadings

Reasoning

The appellant was the plaintiff in the lower court, so there was no defence to consider. No specific submissions were made on the issue, and the record showed the trial court took the pleadings filed by the plaintiff into account and made a decision on them.

02

Whether the trial court failed to consider the Surveyor's report

Holding

The trial court critically considered both surveyors' reports, gave reasons for preferring DW2's report, and the appellate court found no basis to interfere

Reasoning

The trial court interrogated both contradicting surveyors' reports, considered the independence of their makers, the boundary features used and their testimony, and adopted DW2's report as more credible. DW2's survey was done pursuant to a court order, while there was no evidence of who called PW2 or of minutes of his site visit.

p. 4
03

Whether the trial court erred in failing to find the Appellant in possession of the suit land

Holding

The claim was one of encroachment by the Respondent; there was no pleading or evidence that the Appellant was in possession of the disputed area

Reasoning

The plaint pleaded a boundary dispute alleging the Respondent's encroachment and possession. There was no pleading that the Appellant was in occupation or possession of the disputed area, and the evidence placed before the court showed the Respondent was in possession.

p. 5

Legal principles established

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  • An appellate court will not interfere with a trial court's findings of fact unless based on no evidence, a misapprehension of the evidence, or demonstrably wrong principles

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Land ActSection 19(1) and (2)
  • Land Registration ActSection 19(3)

Cases cited (1)

  • Mkube Vs Nyamuro
    [1983] KLR 403-415

    A court on appeal will not normally interfere with findings of fact of a trial court unless based on no evidence, misapprehension of evidence or wrong principles.

On appeal from
Tamu Senior Resident Magistrate's Court
Tamu SRMC ELC Suit No. 28 of 2018
Jurisdiction invoked
First appeal to the Environment and Land Court under the Environment and Land Court Act against the judgment of the trial magistrate

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mika (Suing as the administrator of the Estate of Michael Ondieki Wamuoso (Deceased) v Ogutu", Case Analysis (2023). Environment and Land Appeal 20 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19208/eng@2023-07-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.